Affirmed and Memorandum Opinion filed February 7, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00920-CR

PERCY BENJAMIN SMITH, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court 

Brazoria County, Texas

Trial Court Cause No. 65,134

M E M O R A N D U M O P I N I O N

In two issues, appellant Percy Benjamin Smith, III challenges his robbery 

conviction. We affirm.

I. BACKGROUND

At approximately 9:00 a.m. on April 7, 2011, appellant entered a Wal-Mart 

in Lake Jackson, Texas (the “store”). Brent Dumoit, a twenty-one year old loss-
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prevention employee with the store who was dressed in plain clothes and wearing a 

baseball cap,

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observed appellant enter. According to Dumoit, appellant appeared 

suspicious because he was wearing sunglasses and talking on a cell phone and 

walked quickly and directly to the electronics department. Appellant placed a 

television in a shopping cart and then proceeded to the store exit via an unusual 

route, bypassing several cash registers. When appellant arrived at the exit, a store 

greeter asked for appellant’s receipt and even attempted to grab his arm, but 

appellant ignored the greeter and continued to leave the store. As appellant pushed 

the television through the exit, a security device activated a light, indicating that 

appellant had not paid for the television.

According to Dumoit, the following events then occurred. Dumoit 

announced, “Stop, loss prevention.” Appellant immediately pushed the shopping 

cart holding the television into the wall and ran; Dumoit pursued appellant. 

Appellant stopped and faced Dumoit approximately 65 yards from the store exit

near the store’s garden center (however, another witness testified that the distance 

from the store exit to the garden center was 100 yards). Appellant said, “Don’t 

come any closer. I’ll hurt you,” began walking backwards, and acted as though he 

intended to draw a weapon from the back of his pants. Dumoit told appellant he 

intended to detain him and asked, “[H]ow do you want to do this?” After Dumoit

was satisfied appellant did not actually possess a weapon, Dumoit reached for 

appellant, who began swatting Dumoit’s hands. When Dumoit attempted to grab 

appellant’s shoulder, appellant punched him in the teeth and pulled him to the 

ground by his shirt; the assault caused Dumoit’s teeth to bleed and injured his 

knee. Prior to the assault, appellant never surrendered.

 

1 Dumoit was not a peace officer. Furthermore, he was not wearing any badge or clothing that 

would identify him as a store employee.
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Appellant then started running again, and Dumoit stood and resumed the 

chase. Appellant attempted to enter a car which Dumoit believes was being driven 

by a conspirator, but the driver left without appellant. Eventually, Dumoit caught 

appellant by gas pumps sixty yards from the location where appellant had punched 

Dumoit (however, another witness testified the distance from the garden center to 

the gas pumps was 150 yards). Appellant raised his hands, but Dumoit punched 

appellant in the jaw. At that moment, a police officer arrived in his patrol car and 

approached the men. The officer knew Dumoit from past shoplifting 

investigations at the store. Dumoit informed the officer that appellant had struck 

Dumoit. After a brief investigation, the officer arrested appellant. Subsequently, 

Dumoit resigned from his position at the store in lieu of being terminated for 

violating store policy regarding apprehension of criminals. 

Appellant was charged with robbery. The jury found appellant guilty and 

sentenced him to twenty-five years’ confinement.

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II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends the evidence is legally insufficient to 

support his robbery conviction.

A. Standard of Review

When reviewing sufficiency of the evidence, we view all of the evidence in 

the light most favorable to the verdict and determine, based on that evidence and 

any reasonable inferences therefrom, whether any rational fact finder could have 

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 

318–19 (1979)). We do not sit as a thirteenth juror and may not substitute our 

 

2 During the punishment phase, the State established that appellant had been convicted previously 

of nine felonies and four misdemeanors, and appellant was sentenced as a habitual offender. 
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judgment for that of the fact finder by re-evaluating weight and credibility of the 

evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, 

we defer to the responsibility of the fact finder to fairly resolve conflicts in 

testimony, weigh the evidence, and draw reasonable inferences from basic facts to 

ultimate facts. Id. This standard applies equally to both circumstantial and direct 

evidence. Id. Our duty as reviewing court is to ensure the evidence presented 

actually supports a conclusion that the defendant committed the crime. Williams v. 

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B. Robbery

A person commits robbery if, in the course of committing theft and with 

intent to obtain or maintain control of the property, he intentionally, knowingly, or 

recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02 (West 

2011). A person commits the offense of theft if that person unlawfully 

appropriates property with intent to deprive the owner of the property. Id. § 

31.03(a) (West Supp. 2012).

The phrase “in the course of committing theft” means “conduct that occurs 

in an attempt to commit, during the commission, or in immediate flight after the 

attempt or commission of theft.” Id. § 29.01 (West 2011). “Immediate flight” is 

not defined in the Penal Code, but the Court of Criminal Appeals has defined

“immediate” as “[o]ccurring without delay; instant,” “[n]ot separated by other 

persons or things,” or “[h]aving a direct impact; without an intervening agency.” 

Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (quoting Black’s Law 

Dictionary 751 (7th ed. 1999)); see also Thomas v. State, 708 S.W.2d 580, 581 

(Tex. App.—Eastland 1986, pet. ref’d) (quoting previous edition of Black’s Law 

Dictionary, in which “immediate” definition includes, “A reasonable time in view 

of particular facts and circumstances of case under consideration”).
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C. Analysis

Appellant contends the evidence is legally insufficient to support his robbery 

conviction because any bodily injury he caused to Dumoit did not occur during 

appellant’s immediate flight from the commission of the theft. According to 

appellant, the distance between the store door where the theft occurred and the 

location where he allegedly punched Dumoit—approximately 65 to 100 yards—is 

too great to fall within the meaning of immediate flight. 

In support, appellant cites a recent case in which the Court of Criminal 

Appeals held the defendant’s attack on a victim did not occur during the 

defendant’s immediate flight from his theft. Sweed, 351 S.W.3d 63. However, the 

facts in Sweed are clearly distinguishable from appellant’s situation. 

In Sweed, the defendant stole a nail gun from a construction site and was 

secretively followed to his apartment by a construction worker. Id. at 64. Between 

five and twenty minutes later, the defendant exited his apartment empty-handed 

and walked to a group of men 150 feet away. Id. at 65. Five minutes later, the 

defendant walked back toward his apartment. Id. The defendant then saw and 

recognized the construction worker and threatened him with a knife. Id. The 

Court of Criminal Appeals held that the jury could have reasonably found the 

defendant’s threat did not occur in the immediate flight from the theft. Id. at 69. 

We note that the Sweed court did not conclude the evidence was legally 

insufficient to support a finding that the defendant made the threat in immediate 

flight from the theft; instead, the court held the defendant was entitled to 

submission of the lesser-included offense of theft (an issue we address in the next 

section). 

Here, as appellant was leaving the store with the television, he was ordered 

to stop by Dumoit, who identified himself as a loss-prevention employee. 
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Appellant discarded the television and ran from Dumoit. After 65 to 100 yards, 

appellant turned and faced Dumoit, eventually punching Dumoit in the face while 

he was attempting to detain appellant for the theft. These facts clearly support a 

finding that appellant caused Dumoit bodily injury during the immediate flight 

from the theft. See, e.g., Lightner v. State, 535 S.W.2d 176, 176–78 (Tex. Crim. 

App. 1976) (holding assault occurred during immediate flight from theft when, 

after committing theft, defendant left in vehicle, stopped approximately 100 yards 

from the scene of the theft, was ordered to exit by an officer, then struck officer 

during pat-down search).

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 Accordingly, we overrule appellant’s first issue. 

III. LESSER-INCLUDED OFFENSE

In his second issue, appellant contends the trial court erred by refusing to 

submit an instruction on the lesser-included offense of theft.

A. Lesser-Included Offense Standard

In determining whether the trial court should have granted a defendant’s 

request for a lesser-included offense, we apply the two-prong Rousseau test. 

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); see also 

Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). First, we determine 

whether the offense is a lesser-included offense of the alleged offense.

Rousseau, 855 S.W.2d at 672–73.

If so, we then determine whether there is some evidence in the record that 

would permit a jury rationally to find that, if the defendant is guilty, he is guilty 

only of the lesser-included offense. Id. The evidence must establish that the 

 

3 Appellant also appears to argue that the theft and assault were separate incidents 

because he abandoned the television before striking Dumoit. However, the Court of Criminal 

Appeals held long ago that abandonment of stolen items does not automatically mean a 

subsequent assault no longer occurred during immediate flight from the theft. See Ulloa v. State, 

570 S.W.2d 954, 957–958 (Tex. Crim. App. 1978). 
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lesser-included offense is a valid, rational alternative to the charged offense. 

Goad, 354 S.W.3d at 446. Anything more than a scintilla of evidence is sufficient 

to entitle the defendant to a lesser charge. Id. We review all of the evidence in the 

light most favorable to the requested lesser-included offense, whether the evidence 

was produced by the State or the defendant, and whether it be 

strong, weak, unimpeached, or contradicted. Id. at 446–47; Bufkin v. State, 207 

S.W.3d 779, 782 (Tex. Crim. App. 2006). Although this threshold showing is low, 

it is not enough that the jury may disbelieve crucial evidence pertaining to the 

greater offense, but rather, there must be some evidence directly germane to the 

lesser-included offense for the finder of fact to consider before an instruction on a 

lesser-included offense is warranted. Sweed, 351 S.W.3d at 68. This standard may 

be satisfied if some evidence refutes or negates other evidence establishing the 

greater offense or if the evidence presented is subject to different interpretations. 

Id.

C. Analysis

We conclude the first prong of the Rousseau test is satisfied: theft is a lesserincluded offense of robbery as charged. See Neelys v. State, 374 S.W.3d 553, 560

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Appellant contends the second 

prong of the test is met because there is more than a scintilla of evidence 

supporting a finding that he did not commit the assault during his immediate flight 

from the theft. We disagree.

We acknowledge that appellant abandoned the television before running

from Dumoit, and that Dumoit was dressed in plain clothing, wore a baseball cap, 

and did not have a badge. Nevertheless, no jury could reasonably conclude 

appellant was simply running to escape from a rogue pursuer, unconnected to his 

theft of the television. See Grey v. State, 298 S.W.3d 644, 649–50 (Tex. Crim.
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App. 2009) (explaining that, under the second prong of the Rousseau test, “we 

view the rationality of the lesser offense, not in isolation, but in comparison to the 

offense described in the charging instrument”). Moreover, due to the uninterrupted 

nature of appellant’s fleeing from, and then striking, Dumoit, no jury could 

reasonably find the distance—whether 65 yards or 100 yards—between the 

location of the theft and the location of the assault means the assault did not occur 

“in immediate flight after the attempt or commission of theft.” Tex. Penal Code 

Ann. § 29.01. As noted above, these facts are clearly distinguishable from the 

facts in Sweed, where there were several intervening events and a greater duration 

of time between the moment the defendant stole the property and the moment he 

threatened the complainant with a knife. 351 S.W.3d at 64–65.

There is no evidence in the record that would permit a rational jury to find 

that, if appellant is guilty, he is guilty only of theft. Accordingly, the trial court did 

not err by refusing to submit an instruction on the lesser-included offense of theft.

We overrule appellant’s second issue.

We affirm the trial court’s judgment.

/s/ Margaret Garner Mirabal

Senior Justice

Panel consists of Justices Boyce, McCally, and Mirabal.

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Do Not Publish — Tex. R. App. P. 47.2(b).

 

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Senior Justice Margaret Garner Mirabal sitting by assignment.